The collapse of a long-sought Navajo-Hopi water settlement this month represents a lost opportunity for the tribes to secure reliable water supplies and for Sen. Jon Kyl to close one last tribal deal before he leaves office in January.

Native American water controversy

Navajo lawmakers voted July 5 to reject the agreement and Kyl’s enabling legislation, which would have authorized funding for water-delivery projects. The Hopi Tribal Council on June 21 narrowly approved the settlement but voted down Kyl’s bill, a necessary component of the deal. The settlement required the approval of both tribes to move forward.

Support for the agreement eroded after Kyl introduced the bill in February. Opponents framed the deal as unfair to the tribes, claiming its central component awarded groundwater that already belonged to the reservation communities.

They also seized on a provision that offered the Navajos extra water if tribal leaders agreed to extend the land lease for a power plant near Page.

The tribes could still try to salvage pieces of the settlement, but time has nearly run out to reintroduce it in Congress, where attention is focused almost exclusively on the election.

Once Kyl retires, the tribes will lose their strongest and most knowledgeable advocate and the driving force behind many of the state’s key water deals. Without a settlement, the tribes’ claims to water would be decided in court, an option that would offer no guarantee of water and no promise of federal assistance to build pipelines, leaving thousands of people with a future of hauling water across the sprawling reservations.

“It’s very disappointing,” said Kyl, R-Ariz. “They have a water right, and they should get it. We have a responsibility to try to get it to them. I would have liked to be able to do that for the people I represent. I’m afraid this might have been their last chance.”

The Navajos and Hopis represent the largest unsettled tribal water- rights case in Arizona . The failed agreement would have satisfied claims on the Little Colorado River and resolved disputes over groundwater aquifers beneath the two reservations. Claims on the mainstem Colorado remain mired in negotiations over funding and the availability of water.

Kyl, a water attorney before being elected to the Senate, has helped broker deals with other tribes, including an agreement with the Gila River Indian Community in 2004, the largest tribal settlement in U.S. history. The Navajo-Hopi deal would have been his last as a senator.

“He was always finding a way to break the logjam,” said Dave Roberts, water-rights manager for Salt River Project, whose rights on the Salt and Verde rivers make it a player in many tribal cases, including the Navajo and Hopi deal.

“We can work on the agreements here,” Roberts said, “but if we don’t have a strong advocate, someone with the knowledge to work on it in D.C., to educate others in Congress about how things work and what the long-term benefit is, we’d be stuck.”

Like most of the tribal agreements, the Navajo and Hopi settlement included a multitude of non-Indian interests. Among them were SRP, Flagstaff , water users on the upper stretches of the Little Colorado and the Central Arizona Project, which oversees some of the water available for tribal claims.

Although the Navajo and Hopi claims focused on the Little Colorado River, the CAP brought to the table 6,411 acre-feet of mainstem Colorado water if the Navajo Nation would work to extend land and coal leases for the Navajo Generating Station.

An acre-foot is 325,851 gallons, enough to serve two families for a year in urban settings but enough to serve significantly more people on the Navajo Reservation, where water hauling keeps use low.

Power-plant provisions

The power plant, on the Navajo Reservation outside Page, provides almost all the power to move water through the CAP Canal from the Colorado River at Parker to Phoenix and Tucson . The CAP buys the power at reduced rates and would be forced to charge more for water without the plant. Its leases expire in 2019.

Kyl said there would have been no agreement without the power-plant leases. But critics of the plant, who targeted the pollution and the coal mining, used the issue to undermine the agreement, filling the audiences at public hearings leading up to the votes.

Elsa Johnson, a Navajo activist who led some of the opposition efforts, said the Tribal Council’s vote showed that ordinary people could wield as much influence as the companies that own the power plant and the coal mine near Kayenta.

“We’ve been treated like an unwanted stepchild by these corporations and other entities for far too long,” she said. “They have profited in the hundreds of millions and billions off our resources while we endure health and environmental impacts.”

Supporters of a water settlement say they’re not sure what would happen if they tried to propose a deal without the power-plant provisions.

The extra water would be off the table, but tribal leaders might be willing to advance a measure based solely on the groundwater projects and Little Colorado River claims.

An earlier settlement proposal did not include the power plant. That version addressed claims on the mainstem Colorado and called for construction of a pipeline to deliver water from the river to the reservations. When the pipeline plan was dropped because of its high cost, the Colorado River deal also fell apart. The power plant incentives were then added to bring the extra water to the table and retain support from all the parties.

“It seemed like a good majority of the ‘no’ votes on the council were because of the power-plant provision,” said Leo Manheimer, a member of the Navajo Nation Water Rights Commission, which endorsed the Little Colorado settlement.

“I think if there’s ever an opportunity to go back and see what the council would do without these provisions, that would be something we would be willing to try to work on,” he said. “But our window of opportunity is small.”

When that window closes, so will many of the advantages of settling claims out of court, Manheimer said. The rejected deal would have secured water from the Little Colorado and protected the river from further development upstream. It would have placed limits on groundwater use by cities and other non-Indian entities near the borders of the two reservations, slowing the depletion of aquifers.

Congress also could have authorized money to build delivery pipelines to Hopi villages and Navajo communities where existing wells often fail to meet demand. In some areas on the southern Navajo Reservation, shallow alluvial wells dry up during a drought, Manheimer said.

Navajo President Ben Shelly said he was disappointed by the council’s votes to reject the agreement and the legislation. He said he would have preferred to see lawmakers amend the proposal to eliminate provisions they didn’t like, but he accepted the outcome.

“The people had the opportunity to learn the details about this complex issue from the day it was brought into public,” he said in a written statement. “We didn’t hide anything. I also stood by my promise to get water infrastructure to the people. We need to get them running water, and this settlement was a good way to do so.”

Although the Hopi Tribal Council rejected Kyl’s legislation, it endorsed the settlement, and tribal officials said they were willing to work on amendments to the bill, mostly to remove the power-plant provisions.

Kyl seemed especially disappointed that the Navajo council didn’t leave that same door open. He said he invited the tribe to help craft amendments, but the council simply voted to reject the bill, an approach that hurt any chance to reopen negotiations with the other state interests. Pursuing the claims in court, he said, “will cost a lot of people a lot of money.”

“There will be a court decree, the tribes will ‘win’ money, but then what will they have? They will have a piece of paper that says they’re entitled to so much water. They have that now,” Kyl said. “With a settlement, they actually get the money to build projects to get water to people. That’s not going to happen if it just goes to court.”

About the author

Matthew Sakiestewa Gilbert is enrolled with the Hopi Tribe from the village of Upper Moencopi in northeastern Arizona. He is an associate professor of American Indian Studies & History at the University of Illinois at Urbana-Champaign.

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